HomeMy WebLinkAboutOB 5 NEWSRACK ORD. 01-15-90DATE: JANUARY 15, 1990
OLD BUSI,VESV N0. 5
v�
Inter - Com
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: WILLIAM A. HUSTON, CITY MANAGER
SUBJECT: NEWSRACR ORDINANCE
Mayor Pro Tem Kennedy requested that the Children's Legal Foundation
analysis of the newsrack ordinance prepared by the City Attorney's
office be agendized for discussion.
lilliam A. Huston, City Manager
i
Children's Legal Foundation
"Protecting she innocence of children"
November 9, 1989
James G. Rourke
City Attorney
City of Tustin
300 Centennial Way
: Tustin, California 92680
Re: Regulation of Newsracks or Honor Boxes
Dear Mr. Rourke:
We missed each other on the telephone, so I decided to
write you instead. I am enclosinga co
dealing with the above issue. Py °f a memorandum
cases Remer v. I am aware of the California
Cit of �El Ca 'on, 125 Cal..Rptr. 116
1975 an Ca i ornia v. Newspa er Pub. Ass. Inc. (v. City
it.App.
Burbank, (Ca .Ct.App. 5 , a t oug I o not mention Cit of
t e memo. Those two cases are simply "bad" law, r em in
result of poor evidence and records on the part of the cities
the
involved. They may mean losing at the "state" cities
still believe ultimately an ordinance level, but I
(or at least: a ban on publicProperty),providing for a total ban
defended. Much depends on how dedicaed"cooud be successfully
to this position. your City Council is
Concerning the ordinance you faxed to me, I do not perceive
any problems with it. It is a well-written ordinance. n fac
I am wondering whether, you have any objection to us t,
copies °f it to individuals who call us on this giving
Subsection (D)(3)(j) may be challengeable, but should withstand. Issue?
judicial scrutiny based on the same rationale as fulto
minor" statutes. I might also suggest addingto subsection to
(E)(2) that a conviction for violatin e subsection
California statute for dissemination of pornography appropriate
"harmful to minors" from a newsrack would result •n h materials
the permit:. It a.n the loss of
If we can be of any more assistance, please let
us know.
Sincerely,
1::�
4
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J mes P. Mueller
,gal Counsel
JPM/lak
Enclosure
Children's Legal Foundation, Inc. • 2845 E. Camelback Rd., Suite 740 • Phoenix, Arizona 85016 * 602 / 381-1312
Founded 1957
MEMORANDUM
RE: Regulation of Newsracks ("honor boxes") and the First
Amendment
Recently, CLF has received several inquiries concerning the
regulation of newsracks, also known as, newspaper vending
machines or honor boxes. This memorandum deals with the extent
to which a municipality.may control the placement orrohibit'
P ion
of said machines without infringing the First Amendment.
The distribution of newspapers through honor boxes or
newsracks is protected under the First Amendmet. Cit_
• n _ Y of
Lak4wood v. Plain Dealer Publishin Co. 486
U.S. 108 S.Ct.;
2138, 100 L.Ed.2d 771 (1988). However, the freedom of a
newspaper publisher to decide where on the streets and sidewalks
of a city it wishes to place its honor boxes is e sub'
� ct to
regulation which passes muster under the "time, place and
manner
test." Renton ve Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct.
925, 89 L.Ed.2d 29 (1986).
The criteria for constitutional regulation
Of time, place
and manner of speech are that the regulation must (1) be- content
neutral; (2) be narrowly tailored to serve a significant
state
interest; and (3) leave open ample alternative . rnative channels of
.:ommunication. Perry Education Assn. v.
Perry Local Educators
:240
Assn., 460'U.S..37, 45, 74 L.Ed.2d 794, 103 S.Ct. 948
(1983).
The degree of protection provided by the constitution
itution
'depends "on the character of the property at issue." per
r ., 460
U.S. at 44. When dealing with honor boxes, typicall
"y� the
property at issue" is city streets. Public streets
and
sidewalks are considered a traditional public forum __ "used for
public assembly and debate." Frisb v.
Y Schultz, 487 U.S.
108 S.Ct. -'
____� 101 L.Ed.2d 420 (1988). Therefore, said
regulations "face an 'especially heavy' burden of 'ustif' '
7 kation."
Providence Journal Co. v. Cit of Ne ort, 665 F.Su .
. pp 107, 111
(D•R.I. 1987). But to say a municipal ordinance
presents a First
Amendment issue is not necessarily to say that it co
nstitutes a
First Amendment violation. Metromedia, Inc.
v. San Diego, 453
U.S. 490, 5551 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (Burger,
C.J., dissenting).
Content Neutral
As long as an ordinance applies to all honor bo
xes, it is
content neutral. Chi ca o News a er Publishers v,
Cit of
Wheaton, 697 F.Supp. 1464 (N.D. ill.
1988)1' Providence Journal
Co -Mr 665 F.Supp. at 112.
Alternative Channels of Communication
City regulations which only ban honor
areas boxes from *certain
i.e., public property, certain streets,P arks
distances from intersec • °r
tionsspecific
, are more•.easily defended
bvious reasons, than total bans. g for
owever, even in'tbe case of
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total bans; evidence may be available that ample alternative
channels of communication remain. In
City of Lakewood t '
he trial
court
"found that no person in Lakewood lives more than a
quarter-mile;from a 24-hour newspaper outlet: either a
store open all-night or a newsbox located on private
Property. home delivery, the means by which appellant
distributes the vast majority of its newspapers is an
option as well.
100 L.Ed.2d at 800 (Justice White, with whom Justice Stevens and
Justice O'Connor join, dissenting.) Also,
simply be
P Y cause a
municipality were to prohibit honor boxes within its
limits, would nocorporate
•• t mean that the -publisher could
not distribute
its newspapers on the city's streets b other
Y means, such -as a
newspaperboy or girl.
Narrowly Tailored to Serve a Significant State I4.nterest
`:A statute is narrowly tailored if it targets and' eliminates
no more than the exact source of the "evil" it seeks t 'remedy,
remedy.
Cit Council of Los Ari ales v. Taxpayers , for Vincent, 466 U.S.
789, 808-810, 80 L.Ed.2d 772, 104 S. 2118 (1984). A complete
ban can be narrowly tailored, but only if each activity within'
the proscription's scope is an appropriate)
example, in Tax a ors fo Y targeted evil. For
r Vincent, an ordinance that banned all
signs. on ublic property P was upheld because the '
supporting the regulation, an estheticInterest
interest in avoiding
visual clutter and blight, rendered each sign an evil. Complete
prohibition was necessary because "the substantive evil -- visual
''light -- [was] not merely a possible byproduct of the activity,
but [was] created by the medium of expression itself." Id., at
-3-
J
810; .80 L.Ed.2d 7721'104 S.Ct. 2118.
Traditionally, the significant state interests urged by the
municipalities in these cases fall into three areas: vehicular
safety, pedestrian safety, and aesthetics. The Court has simply
recognized this issue to be a factual one -- determined by the
record, or lack thereof, made by the municipality in support of
its position or interest. "Although safety is undoubtedly a
significant government interest, board assertions of a safety
-interest, without evidence to substantiate them cannot survive
when the First Amendment is implicated." Gannett Satellite Inc.
Network v. Pennsauken TP., 709 F.Supp. 530, 536-7 (D.N.J. 1989).
)
Unless a tremendous record is made in support of the public
safety arguments, an ordinance will probably fail if enacted and
based solely on vehicular and pedestrian safety concerns.
Aesthetics is another matter however. It is well settled
that-�;the state may legitimately exercise itsce oliow
P powers to
advance aesthetic values. Berman v. Parker, 348 U.S. 26 75
s.Ct. 98, 99 L.Ed.2d 27 (1954). The Court appears to be more
likely -to defer to the city officials' judgment in this area,
than other areas. As Justice Ralinquist noted:
Nothing in my experience on the bench has led me to
believe that a judge is in any better position than a
city or county commission to make decisions in an area
such as aesthetics. Therefore, little can be gained in
the area of constitutional law, and much lost in the
process of democratic decisionmaking, by allowing
individual judges in city after city to second-guess
such legislative or administrative determinations.
Metromedia, 453 U.S. at 570 (Rehnquist, J. dissenting),
senting).
Metromedia dealt with San Diego's prohibition of certain
forms of outdoor billboards. There the Court considered the
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city's interest 'in avoiding visual clutter, and seven Justices
explicitly concluded that this interest was suffic'
• lent to justify
a prohibition of
. billboards, see id., at 507-508, 510 (opinion on of
White, J., joined by Stewart, Marshall, and Powell, JJ.
)i id., at
552 (Stevens, J.,' dissenting in part); id., at 559-561Bu
( rger,
C.J., dissenting); id., at 570 (Rehnquist, J., dissenting).
Justice White, writing for the plurality, expressly concluded
that the city's aesthetic interest were sufficientlysubstantial
antial
to provide an acceptable justification for a content -neutral
Prohibition against the use of billboards; San Diego's interest
in its appearance was undoubtedly a substantial
governmental
goal.. Id., at 507-508. However, the ordinance failed for other
reasons.
In Taxpayers for Vincent, the Los Angeles Municipal Code
prohibited the posting of signs on publice
ro rt
P p. Y• The
ord4ance was challenged by a group of supporters pp of a political
candidate as abridging their freedom of speech within the
meaning
of the First Amendment. The Court upheld the ordinance
finding
that cities have a weighty, essential esthetic interest in.
proscribing intrusive and unploasant formats for expression;
that
the problem addressed by the regulation -- the visual assault on
the citizens of Los Angeles presented by an accumulation of signs
Posted on public property -- constitutes
a significant
substantive evil within the city's power to
Prohibit; and that
the ordinance curtailed no more speech than is necessary to
accomplish its purpose of eliminating visual clutter.
The Supreme Court dealt specifically with honor'
boxes in the
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resent case of Lakewood v. Plain Dealer, 486 U.S• 108
S . Ct .
x,'100 L.Ed.2d 771 (1988). Brennan, joined by Marshall
Blackman, and Scalia, JJ., found that t '
he ordinance, which
regulated placement of newsracks, was unconstitutional in that it
gave the mayor unfettered discretion to grant or den e
Y permit
applications, and to impose additional terms and conditions
for
the issuance of such permits. The Court expresslydeclined ed to
pass on the question of the constitutionality of an outright
municipal ban on newsracks. Lakewood, 486 U.S. at
However, three' justices (White, Stevens and'
0 Connor)
specifically found that an outright ban on newsracks on municipal
sidewalks would be constitutional. Their reasoning was based, in'
part, on the proposition that the newspaper publishers did not
��
have a right to take city property, onubl'
P a.c safety interests,
and in the protection of cities' recognized aesthetic, interests.
It Mould be further noted . that Chief Justice Rehnquist and .
Justice Kennedy took no part in the decision of this
.case.
CONCLUSION
Since regulations of this nature involve the First
Amendment, they are viewed with suspicion by the lower courts
and, in most cases, have been struck down.
Newspaper Publishers v. -' e'g'' Chicago
City of Wheaton, 697 F.Supp. 1464N.D.
Ill. 1988)• (
Providence Journal Co. v. City of Ne o
rt• 665
F.Su
pp• 107 (D.R.I. 1987);
V. Southern New JerseyNewspapers, Inc.
. New JerseDe t '
. of Transportation, 542
F.
Su173
1982). However PP• (D.N.J.
a
Partial ban was upheld in Gannett Satellite
-6-
.Inc. Network v. %Pennsauken Tp., 709 F.Supp. 530 (D.N.J. 1989)
(ordinance provided that newsracks were prohibited from certain
street and intersections) and "time, place and manner"
regulations were validated in Jacobsen v. Harris, 869 F.2d 1172
(8th Cir. 1989).
Based on the cases of Metromedia, Taxpayers for Vincent, and
Lakewood, I believe that if the Supreme Court were given the
opportunity to review a properly written ordinance providing for
a total ban of honor boxes, or at least a ban fromP ublic
property, the Court would uphold the constitutionality of said
ordinance. The municipality would probablylose
at the lower
levels,'but with persistent and zealous defense, I believe it
would ultimately prevail in the Supreme Court.
V.
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• ORDINANCE N0. 1033
AN ORDINANCE OF THE CITY OF TUSTIN,
CALIFORNIA AMENDING THE TUSTIN CITY CODE
REGARDING THE REGULATION OF NEWSRACKS
EXHIBIT B
The City Council of the- City of Tustin does hereby
ordain as follows:
Section 7212 of Chapter 2, Part 1 of the Tustin City
Code is hereby amended to read as follows:
7212 Regulation Of Newsracks
A. Purpose. The purpose of this chapter is to
establish a comprehensive set of regulations applicable to
newsracks on the public streets, sidewalks and other
public
property. The purpose of this chapter is to advance and
improve safety and aesthetics by controlling the number,
size, construction, placement and appearance of newsracks
without restricting the free dispersal of information
guaranteed by the'Constitutions of the United States and the
State of California.
More specifically, the -purpose of this chapter. is to
promote the public peace, morals, health, safetyand
welfare by regulating'p
the general
and insuring of newsracks so as nto a rpearance, servicing -
dangers of impairing or distracting the vision of otect against
the
rist
and pedestrians; the hazards of unreasonably interfering
with 'or impeding the flow ofr
traffic, including -ingress into dor tris r ss from any
or vehicular
residence or place of business, or from the street to the
sidewalk by persons exiting or enterin
d or
vehicles; unreasonably interfering with the ase of standing
property for its intended public
is
to the use of purpose; unduly restricting access
poles, posts, traffic signs or signals,
hydrants, mailboxes or locations used for transportation
purposes; unsightly structures inconsistent with the intent
and purpose of the city's design regulations; neglectful
servicing of newsracks resulting in visual blight on public
rights-of-way and other public property and detracting' from'
the aesthetics of store window displays, adjacent
landscaping and other improvements; reduction in value of
surrounding property; unnecessary exposure of the city to
personal injury.and property damage claims and lawsuits; and
public displays of harmful or offensive matters.
The City Council finds and determines that the strong
and competing interests of the public and of newspapers
require a reasonable accommodation which can only be
satisfactorily achieved through the means of this section
which is designed to accommodate such interests by,
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• ORDINANCE N0. 1033
AN ORDINANCE OF THE CITY OF TUSTIN,
CALIFORNIA AMENDING THE TUSTIN CITY CODE
REGARDING THE REGULATION OF NEWSRACKS
EXHIBIT B
The City Council of the- City of Tustin does hereby
ordain as follows:
Section 7212 of Chapter 2, Part 1 of the Tustin City
Code is hereby amended to read as follows:
7212 Regulation Of Newsracks
A. Purpose. The purpose of this chapter is to
establish a comprehensive set of regulations applicable to
newsracks on the public streets, sidewalks and other
public
property. The purpose of this chapter is to advance and
improve safety and aesthetics by controlling the number,
size, construction, placement and appearance of newsracks
without restricting the free dispersal of information
guaranteed by the'Constitutions of the United States and the
State of California.
More specifically, the -purpose of this chapter. is to
promote the public peace, morals, health, safetyand
welfare by regulating'p
the general
and insuring of newsracks so as nto a rpearance, servicing -
dangers of impairing or distracting the vision of otect against
the
rist
and pedestrians; the hazards of unreasonably interfering
with 'or impeding the flow ofr
traffic, including -ingress into dor tris r ss from any
or vehicular
residence or place of business, or from the street to the
sidewalk by persons exiting or enterin
d or
vehicles; unreasonably interfering with the ase of standing
property for its intended public
is
to the use of purpose; unduly restricting access
poles, posts, traffic signs or signals,
hydrants, mailboxes or locations used for transportation
purposes; unsightly structures inconsistent with the intent
and purpose of the city's design regulations; neglectful
servicing of newsracks resulting in visual blight on public
rights-of-way and other public property and detracting' from'
the aesthetics of store window displays, adjacent
landscaping and other improvements; reduction in value of
surrounding property; unnecessary exposure of the city to
personal injury.and property damage claims and lawsuits; and
public displays of harmful or offensive matters.
The City Council finds and determines that the strong
and competing interests of the public and of newspapers
require a reasonable accommodation which can only be
satisfactorily achieved through the means of this section
which is designed to accommodate such interests by,
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regulatingtime, place and mann , NI using newsracks.
It is not _ intent of this chi 9ar to. in any way
discriminat against, regulate or .iterfere with the
publication, circulation, distribiution or dissemination of
any newspapers.
B. Definitions. For *the purpose of this part, the
words set out in this section shall have the following
meanings:
(1) "Newsrack" means any self-service or coin-operated
box, container, storage unit or other dispenser installed,
used or maintained for the display and sale of newspapers or
news periodicals.
(2) "Parkway" means that area between the sidewalk and
the curb of any street, and, where there is no sidewalk,
that area between the edge of the roadway and the property
line adjacent thereto. Parkway also includes any area
within a roadway which is not open to vehicular travel.
(3) "Person" means any individual, company,
corporation, association, business or other legal entity.
(4) "Public property" means parks,*square, plazas and
any and all other real property owned by the city.
(5) "Right-of-way" means land which by.- deed,
conveyance, agreement, easement, dedication, usage or
process of law is reserved for and dedicated to the general
public for street, highway, alley, pedestrian walkway, storm
drainage, bicycle path or other purposes.
(6) "Roadway" means that portion of a street improved,
designed or ordinarily used for vehicular travel.
(7 ) "Sidewalk" means any surface provided for the
exclusive use of pedestrians.
(8) ."Street" means all that area dedicated to 'public
use for public street purposes and includes, but is not
limited to, roadways, parkways, alleys and sidewalks.
C. Permits.
(1) No person shall install or maintain any newsrack
which in whole or in part rests upon, in or over any public
right-of-way or other public property without first
obtaining a permit therefor fr.om the LIcense and Permit
Board. An amended application for said permit shall first
be filed with the License and Permit Board in the event that
additional newsracks are installed in the city or. removed
from the city by the applicant subsequent to the issuing of
the original permit by the city.
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regulatingtime, place and mann , NI using newsracks.
It is not _ intent of this chi 9ar to. in any way
discriminat against, regulate or .iterfere with the
publication, circulation, distribiution or dissemination of
any newspapers.
B. Definitions. For *the purpose of this part, the
words set out in this section shall have the following
meanings:
(1) "Newsrack" means any self-service or coin-operated
box, container, storage unit or other dispenser installed,
used or maintained for the display and sale of newspapers or
news periodicals.
(2) "Parkway" means that area between the sidewalk and
the curb of any street, and, where there is no sidewalk,
that area between the edge of the roadway and the property
line adjacent thereto. Parkway also includes any area
within a roadway which is not open to vehicular travel.
(3) "Person" means any individual, company,
corporation, association, business or other legal entity.
(4) "Public property" means parks,*square, plazas and
any and all other real property owned by the city.
(5) "Right-of-way" means land which by.- deed,
conveyance, agreement, easement, dedication, usage or
process of law is reserved for and dedicated to the general
public for street, highway, alley, pedestrian walkway, storm
drainage, bicycle path or other purposes.
(6) "Roadway" means that portion of a street improved,
designed or ordinarily used for vehicular travel.
(7 ) "Sidewalk" means any surface provided for the
exclusive use of pedestrians.
(8) ."Street" means all that area dedicated to 'public
use for public street purposes and includes, but is not
limited to, roadways, parkways, alleys and sidewalks.
C. Permits.
(1) No person shall install or maintain any newsrack
which in whole or in part rests upon, in or over any public
right-of-way or other public property without first
obtaining a permit therefor fr.om the LIcense and Permit
Board. An amended application for said permit shall first
be filed with the License and Permit Board in the event that
additional newsracks are installed in the city or. removed
from the city by the applicant subsequent to the issuing of
the original permit by the city.
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(2 ) r ...,•• rations for
permits r
shall be j wi :d by , this chapter
th the License an permit Board upon
printed fora to be prescribed and supplied
application shall be signed by the applicant ndbsh it.
l The
the following: state
(a) The.name and address of the applicant;
(b) The location(s) of the proposed installation
or maintenance of the newsrack(s);
(c) The time that. said -newsrack(s) is (are)
proposed to be installed or maintained; )
(d*) The nature, type and model of the news
rack(s) proposed to ' be installed or
maintained;
(e) That the applicant agrees upon expiration or
revocation of the
restore the permit, to immediately
public Public right-of-way or other
property to its condition prior to the
installation or maintenance of the
newsrack(s);
(f) Any additional information which the License
and Permit Board may deem necessary for the
Proper disposition of the application.. -
(3) Not more than one
each- applicant regardless of e the numb be required for
Proposed to be installed or maintained, number °f newsracks
(4) Prior to the issuance of a permit, the applicant
shall pay all fees provided by resolution of the City.
Council. y
(5) In addition to the permit a
applicant .shall also execute a document application, each
by the city attorne � pProved as to form
officers, employees and agents free ° and hold -the city, its
claim, demand or judgment in favor of any person erson mless from any
sing
out of the location of any newsrack located upon, in orovera public right-of-way or other
with the city clerk a certificate lof property and deposit -
that a liability insurance insurance evidencing
the City Council has been p slued 1 naming minimum amounts se't' by
additional named insured, and containing a provision city as an
the policy cannot be cancelled' co verae materially
nodified, or limits Qf liability -reduced. or changed at any
:ime during the time the newsrack is installed or maintained
3n -public property. If such insurance is cancelled or
1odified in anyway inconsistent with the foregoing
-equirements, the -said news rack shall be removed --in
accordance with the provisions of this Section. -
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(6) r .r permit shall be vali- a period of five
years, and - je renewed in the sar it...nner set forth in
this sectio or original application;
(7) Each permit* shall be issued only to the person
•making the application and may not be assigned to* another
person by the permittee. If any permittee assigns his
permit to another, the permit will be deemed revoked as of
the time of the attempted assignment:
(8) Upon a finding the applicant is in compliance with
the provisions of this Section the License and Permit Board
shall issue a newsrack permit at locations a
Director of Public Works. If a approved by the
t
applicant shall be notified in writing ofthe specific the
Of such denial by the License and Permit Board and the right
se
to appeal in accordance with -subsection F of this Section•
D. Regulations.
(1) No person shall install, use or maintain any
newsrack which projects onto, into or over any part of the
roadway of any public street, or which rests, wholly or in
part, upon, along•or over any portion of a roadway.
(2) No person shall install use or maintain any
newsrack which in whole or in part -rests upon, in or over
any sidewalk or parkway, when such installation, use or
maintenance endangers the safety of persons or property, or
when such site or. location is used for public utility
purposes, public transportation purposes or other government
use, or when such newsrack unreasonably interferes with or
impedes the flow of pedestrian or vehicular traffic, the
ingress into or. egress from any residence, pl
businessace of
, or any legally parked or stopped
use of poles, posts, traffic signs orsigna st hydrants,
the
mailboxes, or other objects Y said. � permitted at or near said.
location, or when such newsrack interferes with the cleaning
bf any sidewalk.
(3) Any newsrack which in whole or in part rests upon,
in or over any sidewalk or parkway shall comply with the
following standards:
(a)
height,
Newsracks
thirty inches
shall not
in width,
exceed five
two
.feet in
or feet in
depth.
(b) Newsracks shall only be placed near a curb or
adjacent to the wall of a building. Newsracks placed
near the curb shall be placed no less than eighteen
inches nor more than twenty-four inches from the edge
of the curb. Newsracks placed adjacent to the wall. of
a building shall be placed parallel to such wall and
not more than six inches from the wall. No newsrack
shall be placed or maintained on a sidewalk or parkway
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opposenews stand or another. ack.
( No newsracks shall b zhaihed, bolted or
otherw.L.,e attached to any property not owned by the
owner of the newsrack or to any permanently fixed
object.
(d) Newsracks may be chained or otherwise
attached to one another; however, no more than three
newsracks may be joined together in this manner, and a
space of no less than eighteen inches shall separate
each group of three newsracks allowed under this
paragraph (d).
(e) No newsrack, or group of attached newsracks
allowed under paragraph (d) hereof, shall weigh, in the
aggregate, in excess of 125 pounds when empty.
(f) No newsrack shall be placed, installed, used
or maintained:
(1) Within three feet of any marked crosswalk.
(2) Within fifteen feet of the curb return
of any unmarked crosswalk.
(3) Within three feet of any fire hydrant,
fire call box, police call box or other
emergency facility.
(4) Within three feet of any driveway.
o
(5) Within three feet ahead of -or fifteen
feet to the rear of any sign marking a
designated bus stop.
(6) Within three feet of any bus bench.
(7) At any location whereby the clear space
for the passageway of pedestrians is
reduced to less than six feet.
(8) Within three .feet of any area improved
with lawn, flowers, shrubs or trees or
within three feet of any display window
of any building abutting the sidewalk or
parkway or in such manner as to impede
or interfere with the reasonable use of
such window for display purposes..
(g) No newsrack shall be used for advertising
signs or publicity purposes other than that dealing
with the display, sale or purchase of the newspaper or
news periodical sold therein.
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(' 'ach newsrack shall be tained in a clean
and ne- ,..�ndition and in good r iv at all times.
(4) Every person who places or maintains a newsrack on
the streets of the City of Tustin shall have his,.her or its.
name, address, telephone number affixed thereto in a place
where such information may be easily seen.
(i) No person shall knowingly exhibit display, or
cause to be exhibited or displayed, Harmful Matter as such
term is defined in Section 313, Chapter 7.6, Title 9, Part
14, of the Penal Code of California, in any newsrack located
on a public sidewalk or public place from which minors are
not excluded, unless blinder racks have been installed so
that the lower two-thirds of the matter is not exposed to
public view. For the purposes of this section the term
"blinder rack" shall mean opaque material placed in front
of, or inside, the newsrack and which prevents exposure to
public view.
(j) Any publication offered. for sale in a newsrack
placed or maintained on a public sidewalk or public right-
of-way shall not be displayed or exhibited in a manner which
exposes to public view, from any public place, any of the
following:
(1) Any statement or word describing explicit
sexual acts, sexual organs or excrement where such
statements or words have :as their purpose or effect,
sexual arousal, gratification or affront; or.
(2) Any picture or illustration of genitals,
pubic hair, perineums, anuses or anal regions of any
person where .such picture or illustration has' as its
purpose'of effect sexual arousal, gratification or
affront; or
(3) Any picture or illustration depicting
explicit sexual acts where such picture or illustration
has as its purpose or effect, sexual arousal,
gratification or affront.
For the purpose of this sub -section (j) the term
"explicit sexual acts" means the depiction of sexual
intercourse, oral copulation, anal intercourse, oral -anal
copulations, bestiality, sadism, masochism, or excretory
functions in conjunction with sexual activity, masturbation
or lewd exhibition of the genitals, whether any of the above
is depicted or described as being performed alone or between
members of the same or opposite sex, or.' between humans and
animals, or other act of sexual arousal involving any
physical contact with a person's genitals, pubic, region,
pubic hair, perineum, anus or anal region.
E . Rear al.
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(1 Commencing ninety ( days after the
2 adoptio. date of the ordinance codified in this
Section, any newsrack in violation of anyprovision of
3 the ordinance codified in this Section will be deemed
nonconforming.
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(2) In the event that the Director of Public
5 Works determines that a newsrack does not comply with
the provisions of this Section, he or she shall provide
6 written notice of such determination to the permittee
or owner. The notice shall specify the nature of the
7 violation, the location of the newsrack which is in
violation, the intent of the Director of Public Works
8 to remove the nonconforming newsrack in the event a
hearing is not requested, and the right of the
9 permittee to request a hearing before the License and
Permit Board within fifteen (15) days from the date of
10 the notice. If the newsrack is one which has not been
authorized by the License and Permit Board and
li ownership is not known, nor apparent after inspection,
a'notice complying with this section shall be affixed
12 to the newsrack.
13 (3) In the event that a hearing is held pursuant
to this section, the License and Permit Board shall
.14 render a decision, in writing, within ten (10)days
from the date of the hearing, and the decision'.. shall
15 advise the permittee or owner of his or her right to
appeal to the City Council, pursuant to the provisions
16 of sub -section F. Notice of the decision shall be
mailed to the permittee or owner and shall be
17 considered* effective on the date mailed provided that
the notice is properly addressed and placed in the U.S.
18 Mail with first class postage prepaid.
19 (4) The Director of Public Works may take
,-possession of a newsrack and, upon the expiration of
20 thirty (30) days, dispose of the newsrack as required
by law, if:
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(a) No hearing is requested by the permittee
22 or owner within fifteen (15) days as provided in
Section E(2); or
23 ( b )* The appeal period'spe'
cified in Section F
24 has expired; or
25 (c) In the event that an owner or permittee
fails toremove the rack within ten (10) days from
26 the date of the decision of the City Council, that
the newsrack is not in compliance with the rules,
_27 regulations and standards established by this
Section.
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(:. a Director of Public WoA...s shall inspect
any newF ,k reinstalled after ren 1 pursuant to this
Section The permittee of the .Lewsrack shall be
charged a fee for this reinspection as established by
resolution of the City Council.
(6) In the event that any newsrack is abandoned,
the Director of Public Works may remove it pursuant to
the procedures set out in this section. For the
purposes of this section, the term "abandonment" shall
mean no publication.has been displayed in the newsrack
for a period of fifteen (15) consecutive days, no prior
written notice has been -given by the permittee to the
Director of Public Works specifying the reason(s) for
non-use, and the condition of the rack and related
circumstances indicate it will not be actively used
within a reasonable period of time.
F. Appeals
The City Council shall have the power to hear and
decide appeals based upon the enforcement or interpretation
of the provisions.of this Section. Any permittee or owner
who is aggrieved by any decision of the License and Permit
Board may appeal that decision by submitting a written
notice of appeal to *the City Clerk within twenty-one (21)
days of the date on which notice of the decision was mailed.
The City Council may preside over the hearing on appeal or
may designate a hearing officer to take evidence and submit
a proposed decision together With findings, within fifteen
(15) days from the date of the hearing. The City Council
shall, within thirty (30) days from the date of the hearing,
render its decision on the appeal, together with findings.
The decision of the City Council shall be final.
G. Severability
If any provision of this Section as herein enacted or
hereafter amended, or the appligation thereof to any person
or circumstances, is held invalid, such invalidity shall not
affect the other provisions or applications of this Section
(or any sub -section or portion of sub -section hereof) which
can be given effect without the invalid provision or
application, and to this end the provisions of this section
are, and are intended to be, severable.
The provisions of this Section are intended to augment
and be in addition to other provisions of the Tustin City
Code. Whenever the -provisions of this Section impose a•
greater restriction upon persons, premises, or practices
than is imposed by other provisions of the Tustin City Code,
the provisions of this Section shall control.
If any sentence, clause or phrase of' -this Section is,
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for .any rec held to be unconsti•. ' :lal or otherwise
invalid, sup �.... cision shall not effe the, validit of
remaining he
; zisions of this Sectic The City Counci'1
hereby decl,�,es that it would have
passed the ordinance
codified in this Section, and each sentence- clause, and
phrase thereof irrespective of the fact that any one or more
sentences, clauses or phrases be declared unconstitutional
or otherwise invalid.
PASSED AND ADOPTED by the City Council of the City of
Tustin, at a regular meeting on the
day of
01 1989.
ATTEST:
Mary Wynn,
City -Clerk
JGR:tw:R:10/9/89:428f.tw
0
Ursula E. Kennedy,
Mayor